This letter is in reply to your internal advice request, dated June 5, 2009, which pertains to the application of Section 141.89, U.S. Customs and Border Protection (CBP) Regulations (19 C.F.R. §141.89).

FACTS:

At issue are iron and steel classifiable in chapter 72, Harmonized Tariff Schedule of the United States (HTSUS) and articles of iron or steel classifiable under heading 7301, HTSUS to heading 7307, HTSUS. Specifically, you inquire about the entry requirements of used goods such as non-Oil Country Tubular Goods (OCTG) or red-band tubing and scrap metal imported from Canada.

Due to the fact that such items are used and consequently may be quite old, importers often do not enter them with a mill analysis or mill test certificate. A mill test certificate (or mill analysis or mill test report) is a certified quality control document from a testing facility that outlines the chemical makeup and physical properties of materials required to meet certain specifications. Generally, these documents are provided by a steel foundry or manufacturer that tests the materials they produce, in which case the mill test certificate also provides the country of origin of the imported merchandise.

ISSUE:

Whether 19 C.F.R. §141.89 applies to both new and used products? LAW AND ANALYSIS:

The statutory basis for requiring additional information to be provided for certain classes of merchandise can be found in Section 1484(a)(1) of the Tariff Act of 1930 (19 U.S.C. §1484(a)(1)). Title 19 C.F.R. §141.89 provides the following, in pertinent part:

Invoices for the following classes of merchandise, classifiable under the [HTSUS], shall set forth the additional information specified: * * * Iron or steel classifiable in Chapter 72 or headings 7301 to 7307, HTSUS (T.D. 53092, 55977) – Statement of the percentages by weight of carbon and any metallic elements contained in the articles, in the form of a mill analysis or mill test certificate.

As provided above, importers of iron or steel classifiable in

chapter 72, HTSUS, or in headings 7301, HTSUS, to 7307, HTSUS, are required to provide a statement of the internal chemistry of the metal that is being imported. Furthermore, 19 C.F.R. §141.89 requires that the statement be in the form of a mill analysis or mill test certificate. We note that there is no language in the regulation indicating that used goods covered by the rule are exempt from the requirement that they be accompanied by a mill analysis or mill test certificate at the time of importation.

In light of the fact that classification within chapter 72, HTSUS, and in headings 7301 to 7307, HTSUS, depends in large part on the physical and chemical properties of the imported metal, the information contained in a Mill Test Certificate is necessary to ascertain the proper classification of the merchandise. See, e.g. Headquarters Ruling Letter (HQ) 964553, dated May 2, 2001, New York Ruling Letter (NY) G88427, dated April 13, 20001 and NY I89228. dated January 2, 2003. This is the case with respect to used items as well as new. The fact that information must be in the form of a Mill Test Certificate or Mill Analysis reflects the need for CBP to verify the information presented by the importer. By ensuring that the physical and chemical properties of imported iron and steel are tested according to certified methodologies, CBP ensures uniform application of the HTSUS.

Mill Test Certificates are generally prepared by the foundries that manufacture the subject iron and steel. Thus, in addition to ensuring uniform application of the HTSUS, the documents facilitate CBP enforcement of the country of origin marking requirements of 19 U.S.C. §1304 by verifying the claimed country of origin of the products. The certificates also aid the collection of anti-dumping duties. See HQ 546226. dated March 25, 1996. HOLDING:

The requirements of 19 C.F.R. §141.89 apply to both used and new merchandise. Importers of steel and iron merchandise covered by the regulation must provide a statement of the percentages by weight or carbon and any metallic elements contained in the articles, in the form of a mill analysis or mill test certificate, with the entry documentation. Sincerely,